FCC will find new way to prevent ISP abuse after net neutrality loss

Wheeler: "The court invited the FCC to act, and I accept that invitation."

FCC Chairman Tom Wheeler today said the commission will take another shot at preventing abusive practices by ISPs after the commission's Open Internet Order was vacated Tuesday by the US Court of Appeals for the District of Columbia Circuit.

The court struck down the order's ban on traffic blocking and discrimination by Internet service providers because the FCC had not designated ISPs as common carriers. If Internet service providers were treated as common carriers, they could be subjected to stricter regulations, similar to those applied to phone service, which ensure that everyone's calls must go through and that all calls are treated equally. Verizon, which wants to charge content providers for prioritized access to its network, claimed that the FCC erred by imposing common carriage regulations on companies that are not considered common carriers. Verizon sued and won.

Further Reading

The FCC has the authority to reclassify ISPs as common carriers, but corporate and political opposition would make such a change difficult. Wheeler has not given any indication that he wants to reclassify ISPs, but he pointed to a bit of good news for the FCC in the court ruling.

Despite vacating the anti-blocking and anti-discrimination rules, the court said the FCC has general authority "to promulgate rules governing broadband providers’ treatment of Internet traffic." The court remanded the case back to the commission, perhaps inviting it to rewrite the Open Internet Order in a way that puts it on a solid legal footing.

"The court invited the commission to act, and I intend to accept that invitation," Wheeler said today at a conference hosted by the Minority Media & Telecom Council. (C-Span has video of the speech.) "Using our authority, we will readdress the concepts in the Open Internet Order, as the court invited, to encourage growth and innovation and enforce against abuse."

Wheeler didn't detail any specific ways in which the FCC might prevent abuse. But he said he is encouraged by "expressions from many Internet service providers to the effect that they will continue to honor the Open Internet Order's concepts even though they may have been remanded to the commission."

That was likely a reference to a statement made by National Cable & Telecommunications Association (NCTA) CEO (and former FCC chairman) Michael Powell, who said, "The cable industry has always made it clear that it does not—and will not—block our customers' ability to access lawful Internet content, applications, or services." Powell led the FCC from 2001 to 2005 and made the decision not to classify broadband providers as common carriers.

Additionally, Comcast noted, "[W]e agreed in the NBCUniversal Transaction Order to abide by the Open Internet rules for seven years even if the rules were modified by the courts. We remain comfortable with that commitment because we have not—and will not—block our customers’ ability to access lawful Internet content, applications, or services."

The NCTA statement is just a pledge not to block traffic. It doesn't say anything about intentionally slowing certain traffic down, and the NCTA supported pay-for-play arrangements in which ISPs charge content providers for faster access to the network. The FCC, under previous chairman Julius Genachowski, attempted to ban such deals because they would disadvantage smaller content providers that can't afford to pay the fees. Pay-for-play deals are already being implemented in the cellular market by AT&T, which is charging content providers for the right to bypass customer data caps.

Wheeler called the ISP pledges not to block traffic "the right and responsible thing to do" and said the FCC will "take them up on their commitment." But that isn't all the FCC will do, he said.

"At the same time, we accept the court's invitation to revisit the structure of the rules that it vacated," he said. "The great revolution in the Internet is how it empowers individuals to both consume and create. It's the kind of opportunity that we're discussing here this morning, and to do so requires an accessible and open Internet, and we will fight to preserve that capability."

Wheeler had said immediately after the court ruling that the FCC would consider all options, including appeal. He followed that up with an extremely vague blog post. Today's comments are the most specific he's made since the ruling, indicating that he might prefer to rewrite the Open Internet Order to fit the court's order rather than appealing to the Supreme Court.

But a new Open Internet Order wouldn't impose an outright ban on blocking or traffic degradation, barring the unlikelihood of the FCC reclassifying broadband service. It's not even clear Wheeler wants to prevent the kind of pay-for-play deals Verizon wants to implement. Wheeler has said he wants to let "two-sided markets," in which ISPs charge fees to both home Internet users and content companies, evolve and then regulate if things go wrong. He's also said that AT&T's new charges for content providers are "not the sort of thing that should be prohibited out of hand" because AT&T's sponsored data may enable "increased competition and increased efficiency."

Besides rewriting the Open Internet Order, it's possible Wheeler could seek new voluntary agreements with ISPs as he did when he cajoled wireless carriers into promising to unlock out-of-contract phones. Whatever happens, the FCC's attempt to maintain a level playing field on the Internet will likely end up a watered-down version of its former self.

Consumer advocacy group Free Press argued today that the only good option left is reclassifying broadband as a common carrier service. Without doing so, the FCC might be able to force ISPs to disclose the fact that they are blocking services, but it couldn't actually prevent the blocking, Free Press wrote.

"In other words, the court is allowing the FCC to do anything except stop phone and cable companies from discriminating or blocking," Free Press wrote. "That’s right: They can do anything except protect Net Neutrality."

That being said, hopefully they'll play the "common carrier" card this time, but I just don't see it happening.

The supreme court couldn't be much clearer on that should be their next action. The internet is a communications platform just like telephone, while (cable) television is only one way. It was takes more mental leaps to justify the current ISP classification than it does to group it with telephone services as common carrier.

That being said, hopefully they'll play the "common carrier" card this time, but I just don't see it happening.

The supreme court couldn't be much clearer on that should be their next action. The internet is a communications platform just like telephone, while (cable) television is only one way. It was takes more mental leaps to justify the currect ISP classification than it does to group it with telephone services as common carrier.

Agreed, but as the article mentioned, trying it will most certainly run into political headwinds from Capitol Hill.

Please tell us why you think that would be easier than reclassifying ISPs under Title II?

Because once the public owns the pipelines then the ISP can start competing with each other. Internet pipelines, like postal service and roads, should be owned by the public as it is the backbone infrastructure of modern day life.

Are there any drawbacks to labeling ISP's common carrier that we should be aware of before barking up that path?

If not, it seems that now is the time to sharpen my pen and let my representatives and letters to the editor know of my support of the common carrier option, and support of every one that furthers that along.

This guy actually thinks monopolies are innovative and competitive. He is so under qualified it's scary. Normally you get folks who are idealistic but you know they are going to fail, this guy is outright going to screw the public any chance he gets.

Please tell us why you think that would be easier than reclassifying ISPs under Title II?

Because once the public owns the pipelines then the ISP can start competing with each other. Internet pipelines, like postal service and roads, should be owned by the public as it is the backbone infrastructure of modern day life.

Title II basically does that w/o the seizing of networks. Common carriers have to allow competitors to use their networks to provide service. It's why your telco was not the only ISP back in the dial-up days, because the POTS system is a Title II Common Carrier.

Please tell us why you think that would be easier than reclassifying ISPs under Title II?

Because once the public owns the pipelines then the ISP can start competing with each other. Internet pipelines, like postal service and roads, should be owned by the public as it is the backbone infrastructure of modern day life.

ISPs are going to fight tooth and nail to keep from being classified as common carriers. Nationalizing the infrastructure is a pipe dream. If we had any chance of doing it, it would have been during the break-up of AT&T. Now it won't be possible.

Something has to be done, if for no other reason then the future of video entertainment is at stake. That is not an over exaggeration when you consider that companies like Amazon and Netflix are starting to dip their toes into original content. As more and more content goes online, ad free, and easy time shifting Comcast and the like are going to be hard pressed to actually compete by maintaining the status quo which is what large scale businesses love to do. (Where is that fiber again Comcast?)And the easiest hanging fruit for them is to ramp up fees to these companies in the attempt to squeeze their profits. The result is going to be those fees will be passed on to the customer. Anyone who thinks this is not going to happen because Verizon, Comcast, et al look cute at everyone and say we sooooooo promise to not do this, are fooling themselves.

Are there any drawbacks to labeling ISP's common carrier that we should be aware of before barking up that path?

If not, it seems that now is the time to sharpen my pen and let my representatives and letters to the editor know of my support of the common carrier option, and support of every one that furthers that along.

Please tell us why you think that would be easier than reclassifying ISPs under Title II?

It wouldn't necessarily be easier, but it would be better. There's no competition anyway, and removing the ISPs from the basics of moving the bits around would leave them to focus on services and content, which is apparently what they want to do anyway.

Everyone competes, the lines to our business and homes are NOT owned by any private company, they are shared and open for competition. Make it a co-op so to speak, if a provider wants in, they pay the into pot for basic infrastructure, the more contributing the more to spend on basic infrastructure and the lower the cost to all those contributing.

Make ISPs "just the connection". Separate services from the connection. Let businesses and users choose what packages they want, cloud storage, email, B2B, whatever but those are services and should not be part of the connection. This gets rid of the 'Netflix bias', it's just a connection, everyone competes to sell services - but never bundled as part of the connection.

Congress, remove the revolving door. No person should move from Telco/Cable to the FCC and vice versa.

Additionally, Comcast noted that "[W]e agreed in the NBCUniversal Transaction Order to abide by the Open Internet rules for seven years even if the rules were modified by the courts. We remain comfortable with that commitment because we have not—and will not—block our customers’ ability to access lawful Internet content, applications, or services."

After which, Comcast was heard to whisper under its breath, "And once those seven years are up, well, lets just say payback's a bitch".

Are there any drawbacks to labeling ISP's common carrier that we should be aware of before barking up that path?

All the fees and taxes tacked on to your phone bill.

Yah know. I'm almost tempted to say I'm OK with this. At least that way I know the fees upfront vs. wondering if that cost hike by NetFlix or Amazon Prime Instant video was because of Comcast or not. Is it better to dance with the Devil you know or the one you don't?

Nothings going to change unless the President or a group of powerful and prominent congressmen make a decisive stand on the side of network neutrality. Wheeler is a tool, nothing will come out of him that isn't mandated from above.

And since politicians need the big campaign bucks and can be given the veneer of "let companies innovate and compete" they won't do anything. Never mind that, even if market forces alone could provide the best services, ISPs are local monopolies that have nothing at all to do with free markets and fair competition.

That being said, hopefully they'll play the "common carrier" card this time, but I just don't see it happening.

Me neither, however I hold out hope of a repeat of SOPA and its groundswell of support. You get silicon valley to back legislation and push it online and you very well could stand a chance.....Yah I don't think so either. :\

Please tell us why you think that would be easier than reclassifying ISPs under Title II?

Because once the public owns the pipelines then the ISP can start competing with each other. Internet pipelines, like postal service and roads, should be owned by the public as it is the backbone infrastructure of modern day life.

Because the government does such an excellent job maintaining roads?

Why should I believe that the government isn't going to let the infrastructure languish?

Verizon is way more than just an ISP, they can be considered a common carrier, last time I checked, Verizon owns datacenters like NAP of the Americas which acts as a huge connectivity hub not to mention all other cables and fibers they own, they surely OWN the infrastructure where their data flows or parts of its, they can be considered a carrier.

That being said, hopefully they'll play the "common carrier" card this time, but I just don't see it happening.

Me neither, however I hold out hope of a repeat of SOPA and its groundswell of support. You get silicon valley to back legislation and push it online and you very well could stand a chance.....Yah I don't think so either. :\

SOPA, shmopa. The Media Mafia is so over that, it's yesterday's news. Now they're salivating over the likely ratification of the TPP (Trans Pacific Partnership). Although it is top secret and we peons aren't allowed a peek at the treaty drafts, leaks show that it includes most of the objectionable parts of SOPA, PIPA and the like. Silicon Valley is all in on it because they get enhancements to IP rights. Finance and manufacturing are in lust with it also. Odd how RIAA, Wall Street, banksters, manufactures and such all get to send representatives to TPP meetings to review, revise, and negotiate...but consumer protection, unions, and environmentalists are banned. Even most of members of Congress aren't allowed to look at it.

Something has to be done, if for no other reason then the future of video entertainment is at stake. That is not an over exaggeration when you consider that companies like Amazon and Netflix are starting to dip their toes into original content. As more and more content goes online, ad free, and easy time shifting Comcast and the like are going to be hard pressed to actually compete by maintaining the status quo which is what large scale businesses love to do. (Where is that fiber again Comcast?)And the easiest hanging fruit for them is to ramp up fees to these companies in the attempt to squeeze their profits. The result is going to be those fees will be passed on to the customer. Anyone who thinks this is not going to happen because Verizon, Comcast, et al look cute at everyone and say we sooooooo promise to not do this, are fooling themselves.

Of course this needs to be stopped, unless we want an Internet monopoly. Today its video, tomorrow its music, the day after tomorrow its all content.

I will be basing my next vote for President based off how they handle this issue (because we all know nothing will happen in the next 2 years anyway).

Want my vote? I need you to speak about technology as if you know what you are talking about and you need a proven record of fighting for us, the consumer, in regards to net neutrality. could we end up with another obama? perhaps. obama could stop looking like a liar if he would just take a HARD stand like he said he would in 2008/2012.

no? sorry, you lose my vote. i dont care if you want to lower taxes or handle immigration. this issue is so important it should be at the forefront on Capitol Hill. this type of BS and pandering is what stagnates technology and innovation.

Please tell us why you think that would be easier than reclassifying ISPs under Title II?

Because once the public owns the pipelines then the ISP can start competing with each other. Internet pipelines, like postal service and roads, should be owned by the public as it is the backbone infrastructure of modern day life.

Because the government does such an excellent job maintaining roads?

Why should I believe that the government isn't going to let the infrastructure languish?

Reclassify and be done with it.

I think both options would be fine and let the user choose which they want. If corporate networks start to go the wrong way, then people will jump into public state owned networks.

In the short term, this may hurt Netflix, Amazon, and Hulu because they will be forced to pay higher fees to get access to ISP subscribers. But, in the long term, this will help entrenched providers because they'll have existing deals in place and new companies won't be able to get comparable rates. Traditional media is dead; you can't stop the march of technology. We need Net Neutrality to ensure that the new market of online media providers has robust competition or we'll be back in the same situation except Netflix will be doing the price gouging.

Are there any drawbacks to labeling ISP's common carrier that we should be aware of before barking up that path?

If not, it seems that now is the time to sharpen my pen and let my representatives and letters to the editor know of my support of the common carrier option, and support of every one that furthers that along.

This is exactly what we need to do on a national scale.

The problem is getting the rest of Americans who don't know what this is all about to do something. Most people don't even know this is an issue, and the ones that know about it really don't care. How can we get Joe Public to understand the impact of this on their daily life/wallet?

While were at it. Make freaking well sure that the internet extends to the cellular market as well. It may be in the best interest of the USA regardless of the political and lobbyist pressure to mark internet or data services as common carrier because ATT/bell is trying to wiggle out of their switching infrastructure and move over to a complete packet/IP based system. If the FCC allows this without naming "Internet" and similar IP services as common carrier, everyone is going to be in a world of butthurt

Everyone competes, the lines to our business and homes are NOT owned by any private company, they are shared and open for competition. Make it a co-op so to speak, if a provider wants in, they pay the into pot for basic infrastructure, the more contributing the more to spend on basic infrastructure and the lower the cost to all those contributing.

Make ISPs "just the connection". Separate services from the connection. Let businesses and users choose what packages they want, cloud storage, email, B2B, whatever but those are services and should not be part of the connection. This gets rid of the 'Netflix bias', it's just a connection, everyone competes to sell services - but never bundled as part of the connection.

Congress, remove the revolving door. No person should move from Telco/Cable to the FCC and vice versa.

Problem with that is, they'd bring up the debate. Since Congress people do basically the same thing by becoming lobbyists, there'd be media backlash from anyone effected by such a move.

Of course I wish such a policy became widespread for any government employee. No job in any industry you supervised, or voted on.

I will be basing my next vote for President based off how they handle this issue (because we all know nothing will happen in the next 2 years anyway).

Want my vote? I need you to speak about technology as if you know what you are talking about and you need a proven record of fighting for us, the consumer, in regards to net neutrality. could we end up with another obama? perhaps. obama could stop looking like a liar if he would just take a HARD stand like he said he would in 2008/2012.

no? sorry, you lose my vote. i dont care if you want to lower taxes or handle immigration. this issue is so important it should be at the forefront on Capitol Hill. this type of BS and pandering is what stagnates technology and innovation.

I respect your passion and your willingness to vote this issue, but I'm not enthusiastic about the chances. More likely, neither candidate will be able to speak intelligently about technology, and the question of net neutrality won't be mentioned at all in the lead-up to the vote. It's just not a topic most voters care about, sadly.

Given that the telcos and cable companies (both highly regulated industries) put all the independent ISPs out of business or acquired them it am not sure why they should not be classified more strictly and controlled more closely.

I started using the Internet in 1994 and started an ISP. This is horrible news for users. The telcos and cable os will absolutely abuse this and hurt the Internet dynamic. Competition is limited. I live in one of the largest metro areas in the country and I have two choices. A cable company I hate or a telco who does not even provide their higher level service, even though they are based here.

How can the cable companies and hardline telco businesses be highly regulated due to controlling limited infrastructure be allowed to use that same control of that same limited infrastructure to do what they want as it relates to Internet access?